25/04/2004
History of New South Wales From the Records
VOLUME 1 - GOVERNOR PHILLIP 1783-1789G. B. Barton - 1889
PART I
The Courts of Law
THE Letters Patent by which the Courts of Law were established in the colony, under the authority of the Act of Parliament passed in 1787, created a system of judicature of a wholly novel description. Three Courts were thus institutes: a Court of Civil Jurisdiction, composed of the Judge-Advocate and two persons appointed by the Governor; A Court of Criminal Jurisdiction, composed of the Judge-Advocate and six officers, naval or military; and a Court of Vice-Admiralty, composed of seven Commissioners selected from the civil service as well as the naval and military. The jurisdiction conferred upon each of these tribunals was practically unlimited.
The Civil Court was empowered to hear and determine, in a summary way, actions relating to lands and houses, actions of debt and contract, actions of trespass, "and all manner of other personal pleas whatsoever." No limit was placed to the pecuniary amount involved, and no exception was made as to any special class of actions; nor was any distinction recognised between Common Law and Equity. The process was simple. On a complaint in writing made by the plaintiff, the Judge-Advocate issued a warrant under his hand and seal directed to the Provost-Marshal, stating the substance of the complaint, and requiring him to summon the defendant to appear. If the amount in dispute exceeded £10, the officer was directed to bring the defendant personally into Court or take bail for his appearance; the defendant being further required to find security for the satisfaction of any judgment that might be given against him.
The parties being before the Court, the first stage in the proceedings was to swear its members. The Judge-Advocate administered an oath to each of the officers that he would "well and truly try the several issues brought before him, and give true judgment according to the evidence." The officers having been duly sworn, one of them then administered the same oath to the Judge-Advocate, and the business proceeded. Witnesses on either side - parties to the cause were not then competent witnesses in English Courts - were duly sworn and examined, their evidence taken in writing and signed by them. The Court then gave judgment "according to justice and right;" the judgment being followed by a warrant of execution, if necessary, against the defendant's goods and chattels. Where there was no sufficient distress, the defendant could be imprisoned until the debt and costs were satisfied. But in that case, if the defendant made oath that he had no means of maintaining himself in prison, the complainant had to provide maintenance for him according to the order of the Court; and if the amount was not paid for one week, the debtor was discharged, such discharge from prison being also a discharge from the debt. If, on the other hand, the defendant gained the case, he had similar remedies for the recovery of costs.
Either party who might find himself aggrieved by the judgment had a right of appeal to the Governor, who was empowered to issue the necessary process. Where the amount involved exceeded £300, the unsuccessful appellant might go to a higher tribunal, by appeal to the Privy Council. But no appeal could lie unless proceedings for the purpose were taken within eight days from the date of the judgment of the Judge-Advocate's Court, or fourteen days from that of the Governor's. Having regard to the state of the colony, the provisions for appeal were extremely liberal.
The Court of Criminal Jurisdiction - which also exercised unlimited powers - was convened by a precept or warrant issued by the Governor under his hand and seal at any time he might think proper. There were no regular or appointed times for its sitting during the early years of the settlement; it met whenever it was summoned in the manner mentioned. The procedure at the trial was short and simple. The charge against the prisoner, which was required to be "reduced into writing and exhibited by our Judge-Advocate," was not a formal indictment drawn up with technical accuracy according to precedent, but a plain statement of the offence committed. There was no room for technicalities of any kind in the practice of the Court; there were no lawyers in the colony to take technical objections; nor were the prisoners in those days allowed to have counsel on their trial, even in England. The first Judge-Advocate was a military man and not a lawyer; he was not even supposed to have any knowledge of law or of legal forms.
The Court being assembled, its members - each of whom was in full military dress - were sworn to "make true deliverance between his Majesty the King and the prisoner brought before them, and to give true judgment according to the evidence." The Judge-Advocate presided and regulated the procedure; but although he was a judge he was also a juryman, having a vote in the deliberations of the jury. In this as well as in other respects, the constitution of the Court differed materially from that of a Court of Justice in England, where juries were supposed to be sternly guarded against undue judicial influence, and the judge could address the jury only in open Court.
When the prisoner was brought before his judges, the charge was read over to him, and he was called upon to plead. Witnesses were then examined for the Crown. The prosecution was not conducted by the Judge-Advocate, according to the practice of Courts-martial in England, but was left in the hands of the person who had made the charge (1). The prisoner was left to conduct his defence in like manner. At the conclusion of the case, the Court was cleared, the Judge-Advocate and the officers deliberated over their verdict, and as soon as they made up their minds about it, the doors were thrown open again and sentence was pronounced in public. In cases not involving the punishment of death, a verdict of the majority was sufficient; but where the charge was capital - and nearly every criminal charge was capital in those days - the concurrence of five members of the Court was necessary before the sentence could be carried out. Where less than five concurred, the proceedings had to be sent to the Home Government for their consideration. The Governor's warrant was a necessary preliminary to an execution; but he was empowered by his commission to grant a pardon in any case, "treason and wilful murder only excepted," and also, on extraordinary occasions, to reprieve a prisoner until final instructions were received from England (2).
The Court was expressly limited to two forms of punishment - in capital cases death, and in others flogging, or "corporal punishment." No sentence of imprisonment instead of flogging could be passed, nor was there power to impose a fine. A power to impose fines would have been useless in the early days of the settlement, because the prisoners would not have had the means of paying them; and for a similar reason, terms of imprisonment could not be well imposed, seeing that there was no gaol in which the time could be served. To meet the latter difficulty, prisoners were frequently sent for punishment to the islands in the harbour, and subsequently to Norfolk Island. That course was adopted by Phillip in many instances, and would probably have been adopted in many more, if he had had the necessary authority and the means to enforce his own views on the subject; exile to an island being, from the first, his ideal form of penal discipline.
While the Criminal Court was evidently formed on the basis of the Court-martial in England, it was essentially different both in its constitution and its practice. The first and most important point in which this difference appears is the position of the Judge-Advocate. In England, that office was held by a lawyer whose duty it was, not to preside as a judge, but to conduct the case and to advise the Court on legal points, especially points of evidence. The strictly judicial duties were discharged by the President of the Court; but as the person appointed to that office was usually a military man, he was not professionally qualified to deal with legal questions. Trial by Court-martial, in England, was substantially conducted according to the rules of the common law; and consequently it was necessary that the Court should be properly advised on such matters of law as might arise before it. That was the province of the Judge-Advocate. He had no voice or vote so far as the judgment of the Court was concerned, either on the main question or on interlocutory points; he could only advise. Besides acting as prosecutor for the Crown, he was also supposed to assist the prisoner in his defence, in the same manner that judges in the ordinary Criminal Courts are said to be of counsel for him. By this means a fair trial was ensured for the prisoner; so far at any rate that no advantage was taken of him in the examination of witnesses or in the discussion of legal questions (3).
The Judge-Advocate of the Court created by the Letters Patent of 1787 bore very little resemblance to the Judge-Advocate of the English Courts. The first person appointed to the office being a captain of marines, he was not in a position to discharge the duties of a legal adviser. The Court was consequently under the necessity of administering the law without any legal advice whatsoever. Being expressly required by the Letters Patent to act "according to the laws of England," some knowledge of those laws was evidently presumed; but it is not easy to understand how a Court composed exclusively of military and naval officers could be expected to administer such an intricate system of jurisprudence as "the laws of England (4)." The ordinary Court-martial was properly composed of such materials, because the offences tried before it were simply breaches of military discipline, the punishment for which was regulated by military law. But here the Court was empowered to deal with the whole range of the criminal law, including both common and statute law; and the trials, moreover, were conducted by a judge who was required to act as a prosecutor and a juryman at the same time. Collins was satisfied that "when the state of the colony and the nature of its inhabitants are considered, it must be agreed that the administration of public justice could not have been placed with so much propriety in any other hands (5)." No doubt it would have been a matter of some difficulty to establish, at the foundation of a colony, a Court of Justice strictly modelled according to English precedent. A jury of twelve men, free from all Crown influence, presided over by a judge learned in the law and equally independent of the Crown, forms the essential feature of an English Court of Justice; but such a jury could not have been got together in the early years of the colony, seeing that there were no free settlers at that period. This was one of the unfortunate results of the system on which the colony was founded. Every person charged with an offence was brought before a tribunal, the judge of which knew nothing of the law, while he was not only a judge but a juryman; the other members of the Court being officers in the pay of the Crown, whose notions of justice were derived from their knowledge of Courts-martial. "He is brought before a Court," says Collins, "composed of a judge and six men of honour, who hear the evidence both for and against him, and determine whether the crime be or not be made out." To hear evidence is one thing, and to weigh it is another; and unless the evidence taken before the Judge-Advocate's Court was carefully weighed in every instance according to law, how could he be satisfied that the crime was made out in any case?
But the weighing of evidence is a branch of mental analysis for which the usual training of soldiers and sailors furnishes no qualifications. The danger, to which Courts-martial are peculiarly liable, of arriving at wrong conclusions at the trial of criminal charges, was painfully illustrated in a case mentioned by Sir Samuel Romilly. A sailor was tried by Court-martial in October, 1806, on a charge of mutiny, alleged to have been committed by him nine years previously, when he was a boy of sixteen. There was only one witness for the prosecution, who swore positively that he had seen the prisoner taking an active part in the mutiny; but at the same time he admitted that he not seen the accused since that time. The latter read a written statement in defence, in which he begged for mercy on account of his youth. He was sentenced to be hanged, and was executed accordingly ten days after the trial. The case subsequently came before the Attorney-General and Romilly, then Solicitor-General; and from inquiries which they instituted, it was clearly proved that the man was innocent. "He had applied to another man to write a defence for him; and he had read it, thinking it calculated to excite compassion, and more likely to save him than a mere denial of the fact (6)."
NOTES:
(1) Tench, Narrative, p. 70.
(2) Phillip's commission did not give him any power to remit any part of the term of transportation for which offenders had been sent out to the colony; but a power to that effect was given by a subsequent commission, dated 8 November, 1791; post, p. 542.
(3) Tytler, p. 349. The report of the trial of Lieutenant-Colonel Johnston, for mutiny in arresting and deposing Governor Bligh, held before a General Court-martial in 1811, furnishes a good illustration of the practice in those Courts. The Court was composed of fifteen military officers; Lieutenant-General Keppel being President, and the Right Honorable Charles Manners Sutton the Judge-Advocate.
(4) Post, p. 535.
(5) Account of the Colony, p. 12.
(6) Memoirs of Sir Samuel Romilly, vol. 11, p. 182.
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